Background
Ms Imam is homeless and disabled within the meaning of s.6 of the Equality Act 2010. She applied to Croydon for assistance under Part 7 of the Housing Act 1996 in 2014. Croydon accepted a main housing duty under s.193(2) of the Act and provided Ms Imam with an adapted 3-bedroom property from within its own stock. Following a statutory review, Croydon accepted that the property was not ‘suitable’ within the meaning of the Act. Ms Imam brought judicial review proceedings by which she sought a mandatory order requiring Croydon to provide her with suitable accommodation within six weeks.
In the High Court, the judge declined to exercise his discretion to make a mandatory order citing various factors, including the lack of evidence from Ms Imam on the impact the accommodation was having on her, the steps Croydon had taken to secure suitable accommodation, the lack of available accommodation, and Croydon’s budgetary constraints. Ms Imam appealed to the Court of Appeal, which allowed her appeal in part, stating that the judge had erred in having regard to the local authority’s budgetary constraints and in his analysis of Croydon’s evidence.
The judgment
The starting point is that local authorities are subject to a duty imposed by Parliament that is not qualified in any way. Where a breach of the duty is established, the ordinary position is that a remedy should be granted. Usually in judicial review, that remedy will be a declaration or a quashing order.
Mandatory orders are fundamentally different in their force and effect to their other remedies available in judicial review; they require the court to substitute its own decision for the decision of the public authority and to step into the role of primary decision maker.
In planning their affairs and setting their budgets, local authorities must balance all the demands placed on them by Parliament and match these with the resources available. A court cannot carry out that function itself, since it lacks the democratic authority, detailed knowledge of the range of demands and range of funding options available, and the administrative expertise required for this.
The courts must have regard to the disruptive effect of a mandatory effect for an authority’s plans for the allocation of its resources to meet all the functions and duties imposed on it by Parliament. The courts should also have regard to the fact that a mandatory order gives a statutory duty a ‘super-added force’.
In deciding whether to make a mandatory order in breach of duty cases, the courts must have regard to:
- The length of time that the authority has been in breach of its duty.
- Whether the authority is moving to rectify the situation and satisfy the individual’s rights.
- Whether the authority has taken all reasonable steps to comply with its duty.
- The extent of the impact of the breach on the person to whom the duty is owed.
- The effect of the order on those not before the court but who may have an equal or better claim to the authority’s limited resources.
Lessons to be learnt
The judgment confirms that an authority’s resources, or lack of them, are relevant to the issue of relief. This will be welcome news for local authorities.
However, public authorities will be required to file extensive evidence on the allocation of their limited resources if they are to avoid a mandatory order.
In housing cases, they will need to demonstrate they have considered using their Part 6 (of the Housing Act 1996) stock to perform their Part 7 duties. More generally, they will need to show why they cannot allocate more resources to rectify an acknowledged breach of duty, whether they have any contingency funds which they can draw upon to perform their duty, when and how the breach was brought to the attention of the full council, and how that was considered as part of the Council’s budget setting process.
Public authorities will also be required to show how they have rationally and lawfully allocated their limited resources among all those to whom a duty is owed.
Officers working in areas like housing and social care must escalate complex cases where there is a risk that a duty may be breached as early as possible. Initially, they should be brought to the attention of the relevant Head of Service. If it becomes clear that a breach will occur, this should be immediately escalated to the Monitoring Officer. The Section 151 Officer should also be informed, so that action can be taken as part of the budget setting process to allocate resources to resolving the breach.
Officers must document the steps they take to perform a duty owed to an individual, even if they are unsuccessful. These records will form the basis of the authority’s evidence if they are challenged in the courts; there must be a complete record of all action taken.
